Legal aid in criminal proceedings: Council and Parliament reach an agreement

Council of the EU
  • 30/06/2016
  • 11:45
  • Press release
  • 399/16
  • Justice
30/06/2016
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On 30 June, the Permanent Representatives Committee (Coreper) confirmed, on behalf of the Council, the agreement with the European Parliament on the directive on the right to legal aid for citizens suspected or accused of a criminal offence and for those subject to a European arrest warrant.  

The proposed directive lays down minimum rules concerning the right to legal aid for suspects or accused persons in criminal proceedings who are deprived of liberty, and in certain other situations. It also ensures that legal aid is made available in European arrest warrant proceedings, upon the arrest of the requested person in the executing State.

Minister van der Steur from the Netherlands presidency said : "I am very pleased that a political agreement has been reached during our Presidency. Furthermore, I want to thank the rapporteur, Mr De Jong, for the excellent cooperation which was instrumental in achieving this compromise. The directive will contribute to mutual trust between Member States. And I firmly belief that this trust will in turn lead to improved European cooperation in criminal cases."

The two institutions agreed on certain modifications to the proposal submitted by the Commission, so as to enhance the rights for citizens and make the text clearer, in particular with regards to: 

  • the scope of application of the directive, which has been broadened to include a right to ordinary legal aid and not only to provisional legal aid. The ordinary legal aid includes  support at all stages of the criminal justice process, under the conditions set out in the directive, while the right to provisional legal aid was meant to cover only the initial stage of criminal proceedings before a final decision on legal aid is taken; 
  • the inclusion of a means test and a merits test, which may be used to determine whether a person is eligible for legal aid. A "means test" aims at assessing whether the person effectively lacks sufficient resources to pay for legal assistance, while a "merits test" allows to assess whether the provision of legal aid would be in the interest of justice in the light of the circumstances of the case.  

The agreed text will now go through revision by lawyer-linguists before being finally adopted by the Council and Parliament towards the end of this year. 

The Directive includes a transposition delay of 30 months. 

The UK and Ireland decided not to "opt in" while Denmark has an “opt out” by default from justice and home affairs legislation. 

Roadmap on procedural rights 

This directive is the last legal text foreseen as part the roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings adopted by the Council in November 2009. 

The objective of the roadmap was to ensure that any citizen involved in criminal proceedings in a Member State would benefit from certain minimum procedural rights across the European Union. This should also enhance mutual trust between judicial authorities in the European Union, and so encourage the application of instruments such as the European arrest warrant.  

Five other measures have already been adopted on the basis of the roadmap: 

  •    the right to interpretation and translation (Directive 2010/64);
  •    the right to information (Directive 2012/13);
  •    the right of access to a lawyer (Directive 2013/48);
  •    the presumption of innocence (Directive 2016/343); and
  •    special safeguards for children (Directive (EU) 2016/800).